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Ms X and TUSLA, the Child and Family Agency (FOI Act 2014)

Case Number: 160346

Whether TUSLA was justified in its decision to refuse access to a report made by a named social worker following a meeting with the applicant on a specified date on the ground that no such record exists

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 July 2016, the applicant submitted a request to TUSLA for a copy of a report made by a named social worker following a meeting with the applicant at a named hotel on 4 February 2010.

In its decision dated 3 August 2016 TUSLA informed the applicant that as the information pertains to her son, who is now an adult, TUSLA could not release the record sought without his consent. The decision did not identify any specific provisions of the FOI Act upon which the decision to refuse the request was based. On 8 August 2016 the applicant requested an internal review of TUSLA's decision. On 16 August 2016 TUSLA issued its internal review decision, varying its original decision. It stated that there was no written record available of the meeting. The applicant sought a review by this Office of TUSLA's decision on 22 August 2016.

I note that Mr Benjamin O'Gorman of this Office contacted the applicant by telephone on several occasions and informed her of his view that TUSLA was justified in refusing the request on the ground that the record sought does not exist or cannot be found. The applicant requested written confirmation of this. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision. In conducting this review, I have had regard to correspondence between TUSLA and the applicant, to communications between this Office and the applicant and to communications between this Office and TUSLA on the matter.

Scope of Review

This review is concerned solely with whether TUSLA was justified in refusing access to a record of a meeting between the applicant and a named social worker, which the applicant contends took place on 4 February 2010, under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist.

Analysis and Findings

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a "search case" is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in search cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

The applicant indicated that she met with a named social worker on 4 February 2010 in connection with her son and that her son's father was also present. She stated that she was asked to attend the meeting for the purpose of signing an application for her son to be admitted to the care of the HSE. She stated that she refused to sign the form. The form in question, which was signed by the father of the applicant's son, contains an annotation from a social worker (not the social worker with whom the applicant claims to have met) as follows: "[The applicant] stated she was too emotionally upset to sign the form but gave verbal consent over the phone". The form is dated 4 February 2010.

In submissions to this Office, TUSLA provided this Office with details of the searches conducted in response to the applicant's request. Such searches included an examination of the relevant file and of the diary of the relevant social worker. It stated that the only record it has which corresponds to the date in question is the form that contains the above annotation. It added that the location of where the form was signed is not usually specified on the form and that there is no other reference to the form or where a meeting took place for it to be signed. It added that it would not be normal practice to create a record of the meeting and that the form discussed would fulfil that purpose.

More importantly, TUSLA stated that the social worker identified by the applicant was not present at a meeting where the form was to be signed and that the social worker who added the annotation was the only social worker who was involved with the issue of consent for the applicant's son to be taken into care. It stated that there was no record or suggestion in the relevant file that the social worker named in her request met the applicant on the day in question. TUSLA further stated that there was also no record of any other meeting between the Social Work Team Leader and the applicant and her husband.

During the course of this review the applicant indicated that the meeting she was interested in may have in fact taken place in January 2010. While clearly outside the parameters of her original request and the scope of this review, TUSLA reviewed its files and stated that it holds no record of a meeting between the applicant and the social worker named in her request in relation to the subject of parental consent for her son's entry into care.

In summary, it is TUSLA's position that there is no record of the meeting specified by the applicant, as there is no evidence to suggest that the meeting, as described by the applicant, took place. Rather, a different social worker was involved in the matter of parental consent and the only record of the meeting on 4 February 2010 is the form itself, a copy of which was previously made available to the applicant. I appreciate that the applicant may be disappointed with this outcome. However, having considered TUSLA's submissions, I have no reason to dispute TUSLA's position. Accordingly, I find that TUSLA's decision to refuse the applicant's request under section 15(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse the applicant's request under section 15(1)(a) of the FOI Act, on the ground that the record sought does not exist.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 


Stephen Rafferty
Senior Investigator